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Legal Reasoning and Political Conflict

Cass R. Sunstein

Closely analyzes the way the law can mediate disputes in a diverse society, examining how the law works in practical terms

Moves the debate over fundamental values and principles out of the courts and back to the legislatures elected by the people

Updates the previous edition bringing it into the current mainstream of twenty-first century legal reasoning and judicial decision-making focusing many relevant contemporary issues and developments

Legal Reasoning and Political Conflict

Second Edition

Cass R. Sunstein

Description

In Legal Reasoning and Political Conflict, Cass R. Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Professor Sunstein closely analyzes the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. He states that judges purposely limit the scope of their decisions to avoid reopening large-scale controversies, calling such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, and Ronald Dworkin. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law.

Legal reasoning can seem impenetrable, mysterious, baroque. Legal Reasoning and Political Conflict helps dissolve the mystery. Whether discussing abortion, homosexuality, or free speech, the meaning of the Constitution, or the spell cast by the Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: to the legislatures elected by the people.

In this Second Edition, the author updates the previous edition bringing the book into the current mainstream of twenty-first century legal reasoning and judicial decision-making focusing on the many relevant contemporary issues and developments that occurred since its initial 1996 publication.

Legal Reasoning and Political Conflict

Second Edition

Cass R. Sunstein

Author Information

Cass R. Sunstein, Robert Walmsley University Professor, Harvard University School of Law

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard University. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. He has been involved in law reform activities in nations all over the world, often with a focus on behavioral economics. He is the author of many articles and books, including Republic.com (2001); Designing Democracy:What Constitutions Do (2001); Infotopia: How Many Minds Produce Knowledge (2006); Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard Thaler, 2008), Going to Extremes: How Like Minds Unite and Divide (2009); Simpler: The Future of Government (2013); and Choosing Not to Choose: Understanding the Value of Choice (2015).

Legal Reasoning and Political Conflict

Second Edition

Cass R. Sunstein

Reviews and Awards

"The best of American legal theory has attempted to explain and justify an approach focusing on the features of individual cases and avoiding reliance on rigid rules. Sunstein's book not only offers the most comprehensive attempt to defend particularistic decision-making in all of its manifestations, but also gives the most powerful defense. Defenders of rules, categories, and abstraction will have a formidable task in trying to penetrate the armor of Sunstein's normative defense of particularistic decision-making." Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law "

"Cass Sunstein's book makes a significant addition to our understanding of how the law works and of the nature of law itself. He explains in lucid prose, with many concrete examples, the components of good (and bad) legal reasoning and how they contribute to the outcome of legal controversies. Sunstein's ideas, which combine keen insight, common sense, and a vast knowledge of legal materials, are sure to prompt discussion....The book will be of great value to scholars as well as to those who are beginning the study of law." Lloyd L. Weinreb, Dane Professor of Law, Emeritus, Harvard University Law School "

"[Sunstein's] carefully nuanced description of the kind of reasoning employed in law, a process often mysterious to outsiders, is the best I've seen, and captures the way judges actually make decisions in most cases....Professor Sunstein has provided an articulate and comprehensible entry into the intellectual world of lawyers and judges.... Anyone who wishes to learn what 'thinking like a lawyer' is all about should read this book." The New York Times Book Review "